The opinion of the court was delivered by: STEWART
Plaintiffs have moved for a summary judgment on the ground that the Federal Regulation of Fuels and Fuel Additives, 38 Fed. Reg. 33734 (Dec. 6, 1973) (hereinafter Dec. 6, 1973 Regulations) has preempted Sections 1403.2-13.11 and 1403.2-13.12 of the Administrative Code of the City, which prescribe the maximum lead content and volatility limits of regular and premium grade gasoline sold in New York City. The Dec. 6, 1973 Regulations, promulgated by the Administrator for the Federal Environmental Protection Agency (FEPA) (hereinafter Federal Administrator) pursuant to 42 U.S.C. § 1857f-6c(c) (1) (A), set certain national limitations on the lead content in gasoline as of January 1, 1975. Whether the Dec. 6, 1973 Regulations presently preempt Sections 1403.2-13.11 and 1403.2-13.12 is the question presented by plaintiffs' motion. By stipulation of the parties the Exxon (73 Civ. 1047) and the Getty et al. (73 Civ. 1093) cases have been consolidated for all purposes.
On March 15, 1973 a hearing was held on plaintiffs' application for preliminary relief to declare Sections 1403.2-13.11 and 1403.2-13.12 null and void because they had been preempted by the promulgation of the January 10, 1973 federal regulations, and because they violated the commerce clause of the Constitution by discriminating against interstate commerce and by imposing extensive and unreasonable burdens on interstate commerce. By opinion and order of this Court of March 22, 1973 plaintiffs' application was denied. 356 F. Supp. 660.
On March 26, 1973 this Court granted plaintiffs' application for a stay pending appeal and extended the stay on April 10, 1973. Without reaching the merits the Court of Appeals extended the stay conditioned upon the appellants' readiness to go to trial within 30 days of the filing of its opinion of May 17, 1973.
This case has been dormant since then because both parties expected action by either the State Environmental Administrator or the Federal Administrator to be forthcoming. In the meantime, we understand that the plaintiffs have been complying with the second step of the City's ordinance which requires that on and after January 1, 1972 the lead content for gasoline of all Octane levels be 1.0 grams per gallon. The City has continued to allow compliance at the 1972 reduction level.
§§ 1403.2-13.11 and 1403.2-13.12 of the local ordinance provide that the lead content and other physical characteristics of gasoline sold in New York City comply with certain specifications.
By the 1970 Amendments to the Clean Air Act Congress gave the Federal Administrator the power to set standards either for the purpose of protecting automobile pollution control devices or for the purpose of protecting the public health and welfare. See 42 U.S.C. § 1857-f-6c(c) (1) (A) and (B).
Section 211(c) (1) (A) of the Clean Air Act, as amended, 42 U.S.C. § 1857f-6c, provides for federal preemption of standards for fuel or fuel additives when the Administrator of the Federal Environmental Protection Agency has prescribed standards or has found that no control is necessary.
42 U.S.C. § 1857f-6c(c) (4) (A) (i) bars local controls "if the Administrator has found that no control or prohibition . . . is necessary and has published his finding in the Federal Register." Since the Administrator has found otherwise, plaintiffs do not rely on this section for their preemption argument. 42 U.S.C. § 1857-6c(c) (4) (A) (ii) provides for preemption "if the Administrator has prescribed under paragraph (1) a control or prohibition applicable to such fuel or fuel additive, unless State prohibition or control is identical to the prohibition or control prescribed by the Administrator."
The first regulations promulgated pursuant to § 1857f-6c(c) (1) (A) and (B) (January 10, 1973) implemented a lead control standard needed to protect automobile emission control devices.
On December 6, 1973 the Federal Administrator promulgated an amendment to Part 80, Chapter I, Title 40 of Federal Regulations. See Fed. Reg. 33734-41. These regulations, which set standards from the standpoint of protection of health, became effective January 7, 1974 and generally establish prospective controls applicable as of January 1, 1975. The controls require the lead content of gasoline be 1.7 gram per gallon after January 1, 1975 to 0.5 gram per gallon after January 1, 1979.
To allow the degradation of the city's air by use of the federal preemption doctrine, when the applicability of that principle in this case is doubtful at best, would be a travesty on the people of New York City. Plaintiffs seek to create a hiatus in the effective control of air quality in New York City in contravention of logic, legal principles and legislative intent. This Court concludes, based upon the following, that the Dec. 6, 1973 Regulations do not preempt sections 1403.2-13.11 and 1403.2-13.12 until January 1, 1975.
While this Court does not pretend to have any independent power to dictate the lead content of gasoline in New York City, it will not approve the dissolution of an otherwise valid local ordinance when no present conflict exists between it and federal standards. As noted above, 42 U.S.C. § 1857f-6c(c) (1) gives FEPA the power to "control or prohibit the manufacture, introduction into commerce, offering for sale, or sale of any fuel or fuel additive." Congress also provided that no state or subdivision thereof could enforce an emission control prescription not identical with the Federal Administrator's prohibition "applicable to such fuel or fuel additive . . ." 42 U.S.C. § 1857f-6c(c) (4) (A). Although the Dec. 6, 1973 Regulations as to lead content in gasoline are ...